L. Paul Trask,
Jr., Personally, and as Next of Kin and as the Duly Appointed Personal
Representative of the Estate of L. Paul Trask, III, deceased; and Meredith C.
Trask, Appellants,

v.

Beaufort County;
Curtis M. Copeland in His Official Capacity as Coroner of Beaufort County; Judy
R. Copeland, as Personal Representative of the Estate of Curtis M. Copeland;
and Copeland Company of Beaufort, LLC, Respondents.

Few, C.J.: The primary issue in this appeal is whether various
statutes governing coroners and crematory operators give rise to private rights
of action for civil damages. We agree with the circuit court that they do not,
and affirm. We also affirm the circuit court's ruling granting summary
judgment for the defendants for spoliation of evidence and intentional
infliction of emotional distress.

I. Facts

On November 21,
2005, Paul Trask, III, a twenty-year-old, consumed beer at his parents' home in
Beaufort.[1]
Shortly before midnight Paul drove his father's car to a Hess gas station named
Xpress Lane on Boundary Street. The gas station attendant sold Paul two
twenty-four-ounce cans of beer without verifying his age. Paul Trask, Jr.
described the store video as showing his son "going into the Xpress Lane
store and immediately going in, going to the bathroom, pretty clear he had been
drinking beer, coming out, he seems steady, but we know he's been drinking
beer." Paul consumed the beer he purchased from Xpress Lane while driving
approximately twenty-two miles to Fripp Island, but was turned away at the
security gate. After driving almost four miles away from Fripp Island, Paul
lost control of the car, ran off the road, and collided with large pine trees.
The car caught on fire and Paul died from the injuries he sustained in the
accident, either the impact, fire, or a combination.

On May 22, 2006,
Mr. Trask and his wife filed a wrongful death and survival action against Hess
Corporation and Xpress Lane, Inc., which we refer to as the Xpress Lane suit.
The Trasks alleged Paul's death "was the proximate result of the alleged
negligence of [Hess and Xpress Lane], in several particulars, including: the
negligent sale of alcohol to a minor."[2]
They claimed the beers Xpress Lane sold to Paul "were the beers that
caused his intoxication." Hess and Xpress Lane agreed to pay the Trasks
$750,000 to settle the case before trial. As required by law, the Trasks
requested the circuit court approve the settlement, which it did on January 9,
2008. However, Mr. Trask later testified "that it was worth more than
$750,000" and explained, "we were only able to negotiate a very
partial settlement in the Xpress Lane case because we had no definitive
toxicology results to prove . . . that Paul was intoxicated . . . . And so
I would say that caused great damage to the Xpress Lane suit."

In this action the Trasks have sued Beaufort County and Curtis Copeland,[3] both in his official capacity as the coroner of Beaufort County and in his
individual capacity as a crematory operator. They seek damages for the reduced
settlement value of the Xpress Lane suit along with damages for emotional
harm. The Trasks contend various statutes create duties owed to them which
Copeland breached individually and officially. This case is troubling because
Copeland did violate at least some of the statutes, and conducted himself in a
manner we believe was inappropriate. We hold, however, that the law does not
provide a remedy for this conduct in the form of civil damages.

Shortly after the
accident occurred, Copeland went to the scene. At around 1:00 a.m. on November
22, after he learned who owned the car, Copeland drove to the Trasks' home to
inform them of the accident and death. When Copeland arrived at their home, he
did not know who was killed in the accident; he knew only that the car belonged
to Mr. Trask. Once the Trasks determined Paul was the only family member not
at home, they realized he had been the driver. Later that day family and
friends of the Trasks gathered at Mr. Trask's mother's home. Copeland went
there around noon to discuss the funeral arrangements. In addition to being
the county coroner, Copeland also owned Copeland Company of Beaufort, LLC,
which owns and operates Copeland Funeral Home and Coastal Cremation Services.
At the gathering, the Trasks told Copeland they wanted Paul's body cremated and
signed the cremation authorization form. Although they signed the form
sometime between noon and one o'clock, Copeland instructed them to write the
time as 9:15 a.m. The following day Coastal Cremation Services cremated Paul's
body.

The Trasks contend
two statements made by Copeland caused them emotional distress. First, when
Copeland was leaving the Trasks' home after telling them about the accident,
Mrs. Trask asked him if he planned to perform an autopsy on Paul's body.
Copeland responded there was no need to perform an autopsy because "the
cause of death is obvious." Second, a few months later the Trasks asked
Copeland how badly Paul's body was burned in the accident, to which he
responded, "you couldn't tell if the body was black, white, or
Mexican."

The Trasks allege
Copeland, as coroner, was required, but failed, to positively identify the body
in the car as their son, to conduct an autopsy, and to prepare a toxicology
report on the body. They claim that because Copeland individually cremated the
body without conducting a toxicology test officially as coroner, the resulting
lack of knowledge of Paul's blood alcohol level "made it difficult, if not
impossible, for the Trasks to establish and prove otherwise valid claims
against the Xpress Lane and Hess Corporation" and forced them to settle
for less money.

The Trasks filed
this action on April 11, 2007, with claims for negligence and negligent
supervision and training against Beaufort County and Copeland officially; for
negligent spoliation of evidence against Beaufort County; for negligence and
intentional or negligent spoliation of evidence against Copeland individually
and Copeland Company; and for intentional infliction of emotional distress
against Copeland individually.[4]
The Trasks moved for partial summary judgment based on liability. All
Respondents filed motions for summary judgment. The trial court filed its
order on January 2, 2009, granting summary judgment for Respondents. The
Trasks appeal the entire order.

II. Determining the Existence of a Private Right of Action

In a negligence
cause of action, it is the plaintiff's burden to establish that a duty of care
is owed to him by the defendant. SeeMcKnight v. S.C. Dep't of Corr.,
385 S.C. 380, 390-91, 684 S.E.2d 566, 571 (Ct. App. 2009) ("An essential element in a negligence cause of action
is the existence of a legal duty of care owed by the defendant to the plaintiff. Without such a duty, a plaintiff cannot establish negligence.") (internal quotation marks and citation
omitted); Chastain v. Hiltabidle, 381 S.C. 508, 519, 673 S.E.2d 826,
832 (Ct. App. 2009) ("If no duty exists, the defendant is entitled to
judgment as a matter of law."). Though the common law generally does not
impose a duty to act, a statute may create an affirmative duty owed to a
plaintiff. Vaughn v. Town of Lyman, 370 S.C. 436, 441, 635 S.E.2d
631, 634 (2006).

In
order to show that the defendant owes him a duty of care arising from a
statute, the plaintiff must show two things: (1) that the essential purpose of
the statute is to protect from the kind of harm the plaintiff has suffered; and
(2) that he is a member of the class of persons the statute is intended to
protect.

If the plaintiff demonstrates
these two elements, he has established the first element of a negligence
claim—a duty owed to him by the defendant. 297 S.C. at 103, 374 S.E.2d at
915.

However, when the
statute at issue creates or defines the duties of a public official, the public
duty rule applies. 297 S.C. at 105, 374 S.E.2d at 915. "'This rule holds that public officials are generally
not liable to individuals for their negligence in discharging public duties as
the duty is owed to the public at large rather than anyone
individually.'" Vaughn, 370 S.C. at 441, 635 S.E.2d at 634
(quoting Steinke v. S.C. Dep't of Labor, Licensing,
& Regulation, 336 S.C. 373, 388, 520
S.E.2d 142, 149 (1999)). The public duty rule represents a presumption
that such a statute "has the essential purpose of providing for the
structure and operation of the government or of securing the general welfare
and safety of the public," and thus does not satisfy the elements of the
two-part Rayfield test. 297 S.C. at 105, 374 S.E.2d at 915.

The
presumption may be overcome when the statute creates a "special duty"
to the plaintiff. 297 S.C. at 106, 374 S.E.2d at 916. In Rayfield,
this court stated:

A
special duty exists if: (1) an essential purpose of the statute is to protect
against a particular kind of harm; (2) the statute, either directly or
indirectly, imposes on a specific public officer a duty to guard against or not
to cause that harm; (3) the class of persons the statute intends to protect is
identifiable before the fact; (4) the plaintiff is a person within the
protected class; (5) the public officer knows or has reason to know of the
likelihood of harm to members of the class if he fails to do his duty; and (6)
the officer is given sufficient authority to act in the circumstances or he
undertakes to act in the exercise of his office.

Id.; see alsoVaughn, 370 S.C. at 441, 635 S.E.2d at 634 (referring to
the six-part Rayfield test as "the well established 'special duty'
exception"); Jensen v. Anderson Cnty. Dep't of Soc. Servs., 304
S.C. 195, 203, 403 S.E.2d 615, 619 (1991) (adopting the six-part Rayfield test and calling it an "exception to the public duty rule"). If a
special duty is found to exist after analyzing a statute under this test,
courts can be sure the Legislature intended that a plaintiff within the
protected class injured by a public official's breach of the duty have a
private right of action against the official. 304 S.C. at 201, 403 S.E.2d at
618; seeVaughn, 370 S.C. at 442, 635 S.E.2d at 634 ("The public duty rule is a rule of statutory
construction which aids the court in determining whether the legislature
intended to create a private right of action . . . . [T]he dispositive issue
is . . . whether the statute was intended to provide . . . a private right of
action . . . .").

We must analyze the
one statute alleged to have been violated by Copeland individually under the
general two-part test and those alleged to have been violated by Copeland
officially under the special duty exception to the public duty rule.

A. Section
16-17-600 Does Not Create a Duty Owed by Copeland Individually
and Copeland Company to the Trasks

The only allegation
of negligence against Copeland individually and Copeland Company is that they
breached a statutory duty contained in section 16-17-600 of the South Carolina
Code (Supp. 2010). The section provides:

(A) It
is unlawful for a person willfully and knowingly, and without proper legal
authority to: (1) destroy or damage the remains of a deceased human being; . .
. .

A person
violating the provisions of subsection (A) is guilty of a felony . . . .

A
crematory operator is neither civilly nor criminally liable for cremating a
body which (1) has been incorrectly identified by the funeral director,
coroner, medical examiner, or person authorized by law to bring the deceased to
the crematory; or (2) the funeral director has obtained invalid authorization
to cremate.

§ 16-17-600(A).[5]
The Trasks contend this statute creates an actionable duty under the two-part Rayfield test. Specifically, they argue the statute's essential purpose "is to
ensure dead bodies are not destroyed without proper authority." Even if
that is the essential purpose, however, it is not the harm the Trasks claim
they suffered. At oral argument, the Trasks' counsel stated the harm they
suffered was a loss of settlement value of the Xpress Lane suit because Paul's
body was no longer available. Additionally, Mr. Trask stated in his
deposition: "Mr. Copeland performed an illegal cremation on my son's body,
which had the effect of destroying any opportunity to, number one, know for
certain whether or not it was our son, Paul,[6] number two, the actual cause of his death, whether it was the crash itself or
whether he burned to death. We have been denied the toxicology results as a
result of the illegal cremation . . . ." Therefore, the harm they claim
to have suffered is that Paul's body was no longer available for an autopsy and
a toxicology test.

The
essential purpose of section 16-17-600 is not to preserve a body as evidence
for a civil action. Accordingly, the Trasks fail to meet the first element of
the two-part Rayfield test. The Trasks argue, however, that the
statute's specific reference to a crematory operator's immunity for civil
liability demonstrates the Legislature intended for its violation to serve as
the basis for civil liability. We disagree. Section 16-17-600 is a criminal
statute which provides only for criminal sanctions. SeeDorman v.
Aiken Commc'ns, Inc., 303 S.C. 63, 67, 398 S.E.2d 687, 688-89 (1990)
(refusing to find a private right of action for "a criminal statute which
provides only for criminal sanctions" because "[t]he primary
consideration in deciding whether a private cause of action should be implied
under a criminal statute is legislative intent"). We find section 16-17-600
does not create a duty of due care owed by Copeland or Copeland Company to the
Trasks, and therefore they do not have a private right of action for its
breach.[7]

B. No
Duties Exist as to the Negligence Claims Against Copeland
Officially

The Trasks allege
the following statutory duties were breached by Copeland officially: (1) to
perform an autopsy to ascertain the cause of death pursuant to section 17-7-10
of the South Carolina Code (2003); (2) to perform a toxicology test of the
victim of a motor vehicle accident pursuant to section 17-7-80 of the South
Carolina Code (2003); and (3) to take certain steps pursuant to sections
17-5-570(B) and -590 of the South Carolina Code (2003 & Supp. 2010), which
are required when a body cannot be identified. Copeland pled the public duty
rule as a defense to these claims. We agree with the trial court that none of
these statutes satisfy the elements of the six-part Rayfield test, and
thus no special duty exists under any of them and the Trasks have no private
rights of action.

First,
the Trasks allege section 17-7-10 creates a special duty. It states: "The
coroner of the county in which a body is found dead . . . shall order an
autopsy or post-mortem examination to be conducted to ascertain the cause of
death." § 17-7-10. The essential purpose of the statute is "to
ascertain the cause of death." The "particular kind of harm"
the Trasks claim to have suffered is that an autopsy would have provided
evidence for the Xpress Lane suit, and they were not satisfied with the level
of detail in the coroner's explanation of the cause of death. Mr. Trask
testified an autopsy "would have confirmed the results of a toxicology
examination, would have determined the actual cause of death, whether it be the
crash itself or by the fire." The essential purpose of the statute is
neither to provide evidence for a civil lawsuit nor to ensure that the family
of a deceased person is given its desired level of detail regarding the cause
of death.[8]
Accordingly, the Trasks' negligence claim against Copeland officially under
section 17-7-10 is barred by the public duty rule.

Second, the Trasks
allege section 17-7-80 creates a special duty. Title 17 is labeled
"Criminal Procedures," and section 17-7-80 states:

Every
coroner . . . shall examine the body within eight hours of death of any driver
and any pedestrian, sixteen years old or older, who dies within four hours of a
motor vehicle accident . . . , and take or cause to have taken by a qualified
person such blood or other fluids of the victim as are necessary to a
determination of the presence and percentages of alcohol or drugs. Such blood
or other fluids shall be forwarded to the South Carolina Law Enforcement
Division within five days after the accident in accordance with procedures
established by the Law Enforcement Division.

The Trasks argue the
essential purpose of the section "is to protect those who may perish in a
motor vehicle accident, as well as their survivors, their estates, and their
heirs, and equally importantly, to accurately ascertain the cause of the
decedent's death." They contend if Copeland had taken a toxicology
sample, they "would have known what effect alcohol had on Paul's ability
to drive, whether it likely impaired his driving, and whether it significantly
contributed to his death." We do not believe the essential purpose of the
statute is to protect against this "particular kind of harm."
Rather, because the statute requires the toxicology sample be sent to the South
Carolina Law Enforcement Division, we find the purpose of the statute is one of
law enforcement. Therefore, any benefit or injury to the Trasks from its
performance or nonperformance in determining whether alcohol played a role in
their son's death is incidental to its essential purpose. The Trasks'
negligence claim against Copeland officially under section 17-7-80 is also
barred by the public duty rule.

Third, and finally,
the Trasks allege sections 17-5-570(B) and 17-5-590 create a special duty when
a body is not identifiable. Because the Trasks concede that Paul died in the
accident, we need not address this further. Even under their own theory, they
are not within the protected class: families of unidentifiable deceased
persons. Accordingly, the Trasks' claims based on these statutory duties are
barred by the public duty rule.

III. Third Party Spoliation of Evidence

The Trasks also
allege a third party spoliation of evidence cause of action. In Austin v.
Beaufort County Sheriff's Office, 377 S.C. 31, 36, 659 S.E.2d 122, 124
(2008), the supreme court refused to adopt the tort of third party evidence
spoliation. However, it stated, "we decline to address whether we would,
under other factual circumstances, adopt the tort." Id. The
supreme court then listed the elements of negligent and intentional third party
spoliation as stated in Hannah v. Heeter, 584 S.E.2d 560, 569-70, 573 (W.
Va. 2003). Austin, 377 S.C. at 34-35, 659 S.E.2d at 123-24. As the
supreme court did in Austin, we find the Trasks fail to meet those
elements. The Trasks have not presented any evidence that Copeland or Beaufort
County had knowledge two days after Paul's death of a potential civil action
against Hess Corporation and Xpress Lane, or that Paul's body would be
considered evidence in such a lawsuit. More importantly, the Trasks authorized
the cremation of Paul's body. They also failed to show it was possible to
obtain a toxicology test, and did not show how the results of that test would
be vital to their ability to prevail in a civil action. The circuit court
correctly granted summary judgment as to this claim.

IV. Intentional Infliction of Emotional Distress

The second category
of damages the Trasks claim from Copeland's conduct is emotional harm. They
allege Copeland is liable for intentional infliction of emotional distress for
the two statements he made to the Trasks. The statements were made in response
to questions from the Trasks about the performance of an autopsy and the
details of the accident. These are questions properly addressed to a coroner,
not a funeral home owner. Under the Tort Claims Act, a coroner is immune from
suit for "the intentional infliction of emotional harm." S.C. Code
Ann. § 15-78-50 (2005) ("Any person who may suffer a loss proximately caused by a tort of the State, an agency, a political subdivision,
or a governmental entity, and its employee acting within the scope of his
official duty may file a claim as hereinafter provided.") (emphasis
added); § 15-78-30 (2005) ("'Loss' . . . does not include the intentional
infliction of emotional harm."). We agree with the trial court that the
Trasks cannot "circumvent the bar of sovereign immunity by raising alleged
acts by Copeland acting as the Coroner and then seeking to recover for those
acts against Copeland individually."

V. Beaufort County is Not Liable for the Acts or Omissions of
Copeland Officially

The negligence
claim against Beaufort County for Copeland's failure to perform a toxicology
test in his official capacity and the claim of negligent supervision and
training were properly dismissed because Copeland owed no duty to the Trasks
arising from his official actions or inactions in this case. Beaufort County
cannot be vicariously liable for Copeland's conduct because Copeland is not liable.
"If no duty exists, the defendant is entitled to
judgment as a matter of law." Chastain, 381 S.C. at 519, 673
S.E.2d at 832. Therefore, we need not reach the issue of whether Beaufort
County has control over the coroner. SeeFutch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(recognizing that an appellate court need not address remaining issues when
resolution of one issue is dispositive).

VI. Conclusion

In this case, much
of the coroner's conduct is troubling, but none of it is actionable. Because
we find the statutes at issue do not give rise to private rights of action,
because South Carolina has not recognized the tort of third party spoliation of
evidence, and because the Trasks fail to state a claim for intentional
infliction of emotional distress, we find the circuit court was correct in
granting summary judgment.

AFFIRMED.

HUFF and GEATHERS, JJ., concur.

[1] We recite the facts, derived primarily from the complaint and Mr. Trask's
deposition, in the light most favorable to the Trasks. SeeNelson v.
Piggly Wiggly Cent., Inc., 390 S.C. 382, 388, 701 S.E.2d 776, 779 (Ct. App.
2010) (noting in a summary judgment case "the evidence and all reasonable
inferences therefrom must be viewed in the light most favorable to the
non-moving party").

[2] This quotation is from the "Petition for Approval of Settlement" in
the Xpress Lane suit.

[3] Mr. Copeland passed away after oral argument. Judy R. Copeland, the personal
representative of his estate, has been substituted for him in his individual
capacity.

[4] In their complaint, the Trasks sought damages for wrongful death and survival
actions. Because the Trasks conceded they were not alleging a wrongful death
or survival action against Respondents, we do not address that claim.

[6] In several causes of action, the Trasks claimed damages for uncertainty as to
whether Paul is dead because his body was never "positively
identified." However, the Trasks later conceded the body from the
accident was their son. Mr. Trask stated: "I acknowledge that my son is
dead."

[7] Because we find section 16-17-600 created no duty owed by Copeland to the
Trasks, we do not reach the issue of whether the coroner could be immune from
liability under the Safe Cremation Act. S.C. Code Ann. §§ 32-8-300 to -385
(2007 & Supp. 2010).

[8] "Cause of death" is a defined term and "refers to the agent that
has directly or indirectly resulted in a death." S.C. Code Ann. §
17-5-5(2) (2003). In this case, the Coroner's Report states the "Manner
of Death" is "Accident" and the "Cause of Death" is
"Multiple Injuries Extreme."